Under federal law, “stray remarks” made by non-decision-making co-workers or remarks made by decision-making supervisors unrelated to the decision in question are considered irrelevant and insufficient to defeat a motion for summary judgment. In Reid v. Google, Inc., the California Supreme Court recently limited application of this “stray remarks” doctrine in employment discrimination cases brought under California law.

Reid involved an age discrimination claim by a director of engineering who worked at Google from 2002 to 2004. The plaintiff was 52 at the time he was hired. A review of his first year job performance was positive, but contained the following language: “Adapting to Google culture is the primary task for the first year here. . . . Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” In addition, a 38-year-old vice president to whom the plaintiff sometimes reported allegedly described the plaintiff’s opinions as “obsolete” and “too old to matter” and described the plaintiff as “slow,” “fuzzy,” “sluggish” and “lethargic.” The younger vice president also allegedly said that the plaintiff failed to “display a sense of urgency” and “lack[ed] energy.” The plaintiff claimed that other co-workers called him an “old man,” “old guy” and “old fuddy-duddy.” A co-worker also joked that the plaintiff’s office placard, which had a picture of a compact disc, should instead show an LP.

After a year into his tenure, the plaintiff was relieved of most of his duties and told to focus on developing an in-house graduate degree program and a college recruitment program (but without a budget or staff support). Several months later, when senior management was discussing whether to give the plaintiff an annual bonus, one of his supervisors expressed the opinion that he should be treated “consistently with all similarly situated performers.” That same supervisor suggested that Google should also offer Reid a severance package due to the risk of “a judge concluding that we acted harshly.”

A month later, Google terminated Reid. Google said it told the plaintiff that his job was eliminated because the company decided not to pursue the in-house graduate degree program. The plaintiff alleged that he was told only that there was not a “cultural fit.” Although he was given permission to pursue other positions in the company, e-mails between department heads indicated that doing so would not be productive. In one e-mail exchange, a department head asked to be prepped for her interview with the plaintiff. She received a response advising her how to respond to particular inquiries and concluding that “[w]e’ll all agree on the job elimination angle.”

Google argued that these statements were “stray,” and therefore irrelevant, because they were made by non-decision-makers and were ambiguous and unrelated to the adverse employment decision. Google also argued that application of the stray remarks doctrine is an important tool for trial courts to dispose of unmeritorious cases on summary judgment.

The California Supreme Court disagreed with Google, ruling that it is the jury’s responsibility to decide what weight to give the remarks. The court held that summary judgment motions must be decided “on the totality of the evidence, including any relevant discriminatory remarks.” According to the court, the “totality of the evidence” test will still allow judges to “winnow out” weak cases because the test allows judges to consider “who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made.”

We should expect more discrimination cases to reach trial, as employers will have trouble obtaining summary judgment in these circumstances. This “totality of the evidence” test is really the absence of any test at all and will make it difficult to predict how courts will treat particular cases.